Citation Nr: 0821512
Decision Date: 07/01/08 Archive Date: 07/14/08
DOCKET NO. 06-29 494 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to an initial compensable evaluation for
bilateral hearing loss.
REPRESENTATION
Appellant represented by: Arizona Department of Veterans
Services
ATTORNEY FOR THE BOARD
E. D. Anderson, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1963 to
October 1967.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from an October 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Phoenix, Arizona that granted service connection for
bilateral hearing loss and assigned a non-compensable
evaluation.
FINDING OF FACT
The veteran's left ear hearing loss is manifested by an
average pure tone threshold of 60 decibels with speech
discrimination of 92 percent; and right ear hearing loss is
manifested by an average pure tone threshold of 26 decibels
with speech discrimination of 96 percent.
CONCLUSION OF LAW
The criteria for entitlement to a compensable evaluation for
bilateral hearing loss have not been met. 38 U.S.C.A. §§
1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10,
4.85 Diagnostic Code 6100 (2007)
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection for bilateral hearing loss was established
in an October 2005 rating decision and a non-compensable (0
percent) evaluation was assigned. The veteran appealed that
rating.
Disability ratings are determined by applying the criteria
set forth in the VA's Schedule for Rating Disabilities, which
is based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of
disability evaluations is the ability of the body as a whole,
or of the psyche, or of a system or organ of the body to
function under the ordinary conditions of daily life
including employment. 38 C.F.R. § 4.10.
Pertinent regulations do not require that all cases show all
findings specified by the Rating Schedule, but that findings
sufficiently characteristic to identify the disease and the
resulting disability and above all, coordination of rating
with impairment of function, will be expected in all cases.
38 C.F.R. § 4.21. Therefore, the Board has considered the
potential application of various other provisions of the
regulations governing VA benefits, whether or not they were
raised by the veteran, as well as the entire history of the
veteran's disability in reaching its decision. Schafrath v.
Derwinski, 1 Vet. App. 589, 595 (1991).
As the veteran has perfected an appeal as to the assignment
of an initial rating following the initial award of service
connection for bilateral hearing loss, the Board must
evaluate all the evidence of record reflecting the severity
of the veteran's disability from the date of grant of service
connection to the present. Fenderson v. West, 12 Vet. App.
119, 126 (1999). This could result in staged ratings; i.e.
separate ratings for different time periods. Id.
Evaluations of defective hearing are based on organic
impairment of hearing acuity as measured by the results of
controlled speech discrimination testing together with the
average hearing threshold level as measured by pure tone
audiometric tests in the frequencies 1,000, 2,000, 3,000 and
4,000 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100. To
evaluate the degree of disability from defective hearing, the
rating schedule requires assignment of a Roman numeral
designation, ranging from I to XI. Other than exceptional
cases, VA arrives at the proper designation by mechanical
application of Table VI, which determines the designation
based on results of standard test parameters. Id. Table VII
is then applied to arrive at a rating based upon the
respective Roman numeral designations for each ear. Id.
For exceptional hearing impairment, 38 C.F.R. § 4.86 (2007)
states that when the pure tone threshold at each of the four
specified frequencies (1000, 2000, 3000, and 4000 Hertz) is
55 decibels or more, or when the pure tone threshold is 30
decibels or less at 1000 Hertz and 70 decibels or more at
2000 Hertz, the rating specialist will determine the Roman
numeral designation for hearing impairment from either Table
VI or Table VIa, whichever results in the higher numeral.
Each ear is to be evaluated separately. Id.
Of record are results from VA compensation examinations from
June and July 2005, including audiological testing conducted
in June 2005. The June 2005 examination yielded test results
of pure tone thresholds in the right ear at 500, 1000, 2000,
3000, and 4000 Hertz of 15, 10, 20, 35, and 40 decibels,
respectively, for an average over the four frequencies of
interest of 26 decibels. Pure tone thresholds measured in
the left ear at 500, 1000, 2000, 3000, and 4000 Hertz were
20, 15, 35, 85, and 105 decibels, respectively, with an
average over the four frequencies of interest of 60 decibels.
Speech audiometry test results revealed speech recognition
ability of 96 percent in the right ear and of 92 percent in
the left ear. These results show that the veteran does not
have exceptional hearing impairment as contemplated in
38 C.F.R. § 4.86.
Application of 38 C.F.R. § 4.85 Table VI to the June 2005
measurements results in assignment of Roman Numeral II to the
left ear and Roman Numeral I to the right ear, for the
purpose of determining a disability rating. A non-
compensable, or 0 percent, rating is derived from Table VII
of 38 C.F.R. § 4.85 by intersecting row I with column II.
In short, the results from the June 2005 audiological testing
do not provide for assigning a compensable evaluation for the
veteran's bilateral hearing loss. The veteran has not
presented any evidence that his hearing has worsened since he
was last tested in 2005. Rather, the veteran contends that
the results of the audiological testing do not accurately
reflect his level of hearing impairment as it relates to his
ability to perform his daily activities.
In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the
veteran challenged the VA's policy of conducting audiological
testing in a sound-controlled room. In rejecting the
veteran's challenge, the Court noted that:
[T]he appellant has offered no expert medical
evidence demonstrating that an audiometry test
conducted in a sound-controlled room produces
inaccurate, misleading, or clinically unacceptable
test results. Nor has the appellant offered any
expert medical evidence demonstrating that an
alternative testing method exists and that this
method is in use by the general medical community.
The appellant has simply offered his own
unsubstantiated lay opinion as to the impropriety
of this testing method. The Court will not
invalidate the Secretary's chosen policy on this
basis.
Id. at 454.
As in Martinak, the veteran in this case has simply offered
his own unsubstantiated opinion that the audiological testing
he received did not accurately measure his disability. He
has not provided the Board with any medical evidence that his
test was inaccurate or with results from an alternative form
of audiological testing which he believes are more
representative of his degree of impairment. The Board has
reviewed the treatment records, but finds no basis to award
the veteran a higher evaluation.
The hearing rating schedule calls for the mechanical
application of audiological test scores. See Lendenmann v.
Principi, 3 Vet. App. 345, 349 (1992). In the absence of
credible medical evidence that such test scores are
inaccurate, the Board will continue to rely on this rating
schedule.
The Board does not find evidence that the veteran's hearing
loss disability should be increased for any period based on
the facts found during the whole appeal period. The evidence
of record from the day the veteran filed the claim to the
present supports the conclusion that the veteran is not
entitled to additional increased compensation during any time
within the appeal period. As such, the claim for a higher
evaluation for bilateral hearing loss must be denied. The
evidence in this case is not so evenly balanced so as to
allow application of the benefit-of- the-doubt rule. Gilbert
v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b);
38 C.F.R. § 3.102 (2007).
The duties to notify and assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in her or
his possession that pertains to the claim in accordance with
38 C.F.R. § 3.159(b)(1). This notice must be provided prior
to an initial unfavorable decision on a claim by the RO.
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006);
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S.
Court of Appeals for Veterans Claims (the Court) held that,
upon receipt of an application for a service-connection
claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require
VA to review the information and the evidence presented with
the claim and to provide the claimant with notice of what
information and evidence not previously provided, if any,
will assist in substantiating, or is necessary to
substantiate, each of the elements of the claim, including
notice of what is required to establish service connection.
The veteran must also be informed that a disability rating
and an effective date for the award of benefits will be
assigned if service connection is awarded.
The VCAA duty to notify, other than as to how VA assigns
disability ratings and effective dates, was satisfied prior
to the RO's rating decision by way of a letter sent to the
veteran in October 2004 that informed him of what evidence
was required to substantiate his claim and of the veteran's
and VA's respective duties for obtaining evidence. This
letter was sent prior to the initial adjudication by the RO.
The veteran was also asked to submit evidence and/or
information in his possession to the RO.
The Board is aware of the Court's recent clarification of
VCAA notice required for increased rating claims. See
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). However,
although the issue before the Board is whether the veteran's
bilateral hearing loss is properly rated, the appeal arises
from a claim for entitlement to service connection, not an
increased rating claim. See Fenderson v. West, 12 Vet. App.
119, 125 (1999) (explaining that a disagreement with an
initial rating assigned for a disability following a claim
for service connection is part of the original claim and
technically not a claim for an increased rating).
VCAA notice is triggered by receipt of the claim, or
application, for benefits. 38 U.S.C.A. § 5103(a). In Wilson
v. Mansfield, 506 F.3d 1055, 1062 (Fed. Cir. 2007), the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit)
stated:
. . . [S]ection 5103 (a) requires only that the VA
give a claimant notice at the outset of the claims
process of the information and evidence necessary
to substantiate the claim, before the initial RO
decision and in sufficient time to enable the
claimant to submit relevant evidence. This notice
may be generic in the sense that it need not
identify evidence specific to the individual
claimant's case (though it necessarily must be
tailored to the specific nature of the veteran's
claim).
From this statement, it follows that the notice requirements
triggered by VA's receipt of a claim to establish service
connection, such as in the instant case, differs in content
from notice in response to a claim seeking a higher
evaluation for a disability for which service connection has
already been established. In Wilson, the Federal Circuit
specifically rejected the argument that section 5103(a)
notice requirements were altered by the filing of a notice of
disagreement. Id. at 1058-1059.
While notice applicable to increased rating claims does not
apply to the instant case, VA did have a duty to provide the
veteran with notice as to assignment of effective dates and
disability ratings upon receipt of his claim for entitlement
to service connection for bilateral hearing loss. Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
In March 2006 the RO sent the veteran a letter explaining to
him how VA assigns disability ratings and effective dates.
It also informed him of what evidence was required to
substantiate his claim and of the veteran's and VA's
respective duties for obtaining evidence.
This letter did not technically cure the VCAA notice error
because the letter was not followed by a readjudication of
the veteran's claim. Mayfield v. Nicholson, 444 F.3d 1328
(Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112
(2004). However, not all notice errors require a remand for
correction. Rather, only errors prejudicial to the veteran
require correction.
In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the
United States Court of Appeals for the Federal Circuit held
that any error by VA in providing the notice required by 38
U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed
prejudicial, and that once an error is identified as to any
of the four notice elements the burden shifts to VA to
demonstrate that the error was not prejudicial to the
appellant. The Federal Circuit stated that requiring an
appellant to demonstrate prejudice as a result of any notice
error is inconsistent with the purposes of both the VCAA and
VA's uniquely pro-claimant benefits system.
Instead, the Federal Circuit held in Sanders that all VCAA
notice errors are presumed prejudicial and require reversal
unless VA can show that the error did not affect the
essential fairness of the adjudication. To do this, VA must
show that the purpose of the notice was not frustrated, such
as by demonstrating: (1) that any defect was cured by actual
knowledge on the part of the claimant; (2) that a reasonable
person could be expected to understand from the notice what
was needed; or (3) that a benefit could not have been awarded
as a matter of law. Although not specifically discussed by
the court, some other possible circumstances that could
demonstrate that VA error did not prejudice the claimant
include where the claimant has stated that he or she has no
further evidence to submit, or where the record reflects that
VA has obtained all relevant evidence.
In Vazquez-Flores v. Peake, 22 Vet. App. 37, 46 (2008), the
Court observed that whether the post-adjudicatory notice and
opportunity to develop the case that is provided during the
extensive administrative appellate proceedings leading to the
final Board decision and final Agency adjudication of the
claim serve to render any notice error non-prejudicial is a
factor to consider in undertaking a prejudicial error
analysis. While Vazquez-Flores addressed notice in cases
involving increased rating claims, the Court's rationale is
persuasive in the instant case.
Here, the October 2005 rating decision, the February 2006
statement of the case, and a March 2006 letter all inform the
veteran of how VA assigns ratings and effective dates.
Therefore, even though notice regarding this information was
untimely, the veteran has had ample time since then during
the appellate process to submit additional evidence and has
failed to do so. Hence, no corrective action is necessary on
the part of VA.
VA also has a duty to assist the veteran in the development
of the claim. This duty includes assisting the veteran in
the procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has obtained the veteran's
service treatment records, as well as VA treatment records.
The veteran was also afforded VA examinations in June and
July 2005.
Significantly, neither the appellant nor his representative
has identified, and the record does not otherwise indicate,
any additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence,
no further notice or assistance to the veteran is required to
fulfill VA's duty to assist the appellant in the development
of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd
281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15
Vet. App. 143 (2001); see also Quartuccio v. Principi, 16
Vet. App. 183 (2002).
ORDER
A compensable evaluation for bilateral hearing loss is
denied.
____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs